古籍点校版权保护争点透析与进路探论

Focus of the Disputes and Choice of Protection Approach:On Protecting Achievements of Collating Ancient Books

古籍整理成果种类繁复、形式多样,法律应否以及如何保护,不能一概而论。诸如古籍注评、今译乃至作者考证、生平传记之类,只要具备独创性,自可作为演绎作品、汇编作品乃至独立作品受著作权保护,毋庸置论。单纯的古籍点校,既体现点校者综合学养,又以复现古籍原文、原意为趣旨,虽有适度发挥空间,却难充分展现个性,由此而来的文本能否构成作品,才是争点所系。在传统文化语境下,标点句读看似微末之技,实则足以改变文本乃至颠覆文义,非学养深厚者不能为。就点校成果而言,标点与古籍原文融为一体,才最终成就现代意义上的完整表达。尽管如此,在著作权"法眼"之下,无论点校者学养深浅、眼力高低,点校能够成就的文本表达终究十分有限,囿于思想表达混同规则,单纯点校成果难称作品。为保护点校者智力劳动,可给予其成果邻接权保护。就此而言,德国法上的科学版本权颇具参考价值。据此,处于公有领域之作品或文本的整理者,对于其所整理之明显区别于在先版本的新版本享有与同类作品著作权内容相仿、期限为25年的专有权。德国法上的"文本整理"恰如中国语境下的古籍点校,引入科学版本权保护古籍点校成果可谓"严丝合缝"。当然,我国如欲正式建立该制度,尚需在中西文化比较和相关市场调查的基础上,做法理上的深入研究与充分论证。

It is hard to generally determine whether and how to protect the achievements of arranging ancient books,as there are always many types and forms of them.Undoubtedly,some types of the achievements,such as comments and translations of the contents and identifications and biography of the authors,when satisfying the requirements of originality,shall be copyrighted as derivative works or compilation works,or even initial works.When turns to the achievements produced by collating the ancient books,where refl ecting the skills of the collator consisting in pursuing the original ideas of the author,things are different.There certainly exists some space in collation activities for the collators’performance but it is too narrow to fully express themselves,thus the disputed point is indeed that whether to regard those achievements as copyrighted works.In the context of Chinese traditional culture,punctuation seems to be a trivial thing,but it can significantly change the content and even the meaning of the texts,which cannot be accomplished without well-training and deep learning.Under the current circumstance,only when the original text of the ancient book is combined with the punctuation added by the collator can it be regarded as a complete expression of the said collation achievements.Nevertheless,regardless of the ability and knowledge of the collator,the textual expressions that can be produced by collating the ancient books are ultimately very limited.Constrained by the Merging Doctrine of Idea and Expression under the Copyright Law,the achievements of collating ancient books shall not be regarded as a copyrighted work.To reward the collators’intellectual effort,it is feasible to grant them related rights for protection,where we can introduce the concept of“Right of Scientific Editions”prescribed in Copyright Law of German,which says that editions of works or texts which are not protected by copyright shall enjoy the protection afforded by the copyright if they differ substantially from previously known editions of the works or texts,as reference here.As collating the ancient books in China is just like editing the non-copyrighted works or texts in German,it is approximately perfect to borrow the special right to grant the collators.Of course,if decide to do so,it is indispensable to consider the differences between Chinese and Western cultures,fully investigate the markets,and conduct Comprehensive legal research and demonstration in advance.